Capri Med., P.C. v Allstate Ins. Co.

[*1] Capri Med., P.C. v Allstate Ins. Co. 2007 NY Slip Op 50611(U) [15 Misc 3d 129(A)] Decided on March 26, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2006-461 Q C.

CAPRI MEDICAL, P.C. a/a/o Valter Chokolashvili, Respondent,

against

ALLSTATE INSURANCE COMPANY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Howard G. Lane, J.), entered October 27, 2005, deemed an appeal from a judgment entered on February 2, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 27, 2005 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $7,831.65.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's
counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff's corporate officer stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. In opposition, defendant argued, inter alia, that the affidavit by plaintiff's corporate officer failed to lay a proper foundation for the documents annexed to plaintiff's moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court below granted plaintiff's motion for summary judgment and the instant appeal by defendant ensued. [*2]

Inasmuch as the affidavit submitted by plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie
showing of its entitlement to summary judgment (see Dan Med., P.C. v New York
Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists, 2006]). Consequently, the judgment should be reversed, the order granting plaintiff's motion for summary judgment vacated and plaintiff's motion for summary judgment denied. Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 26, 2007